Thorngate v. Legacy Offshore, LLC

United States District Court, E.D. Louisiana

April 30, 2018

BRAXTON THORNGATEv.LEGACY OFFSHORE, LLC

SECTION:
T'(5)

ORDER AND REASONS

MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.

Before
the Court is the motion for partial summary judgment filed by
Defendant, Legacy Offshore, LLC ("Legacy"). (Rec.
doc. 22). The motion is opposed by Plaintiff, Braxton
Thorngate ("Thorngate"). (Rec. doc. 26).
Legacy's motion seeks dismissal of Thorngate's claims
for Jones Act negligence and unseaworthiness on the basis
that the undisputed material facts do not support a finding
of medical causation. For the reasons that follow, the motion
is hereby granted.

A.
FACTS

The
following are the unchallenged facts, taken primarily from
Legacy's Statement of Uncontested Facts. (Rec. doc.
22-5). Plaintiff did not file "a separate and concise
statement of the material facts which the opponent contends
present a genuine issue" as required by Federal Rule
56.2. He did, however, file a "response" to
Legacy's statement of uncontested facts (rec. doc. 26-1),
in which he admitted every one of Legacy's facts, save
one: "Complainant denies in part that on February 25,
2017, he went to the Ohio Valley Medical Center complaining
of chest pain which he had been experiencing for four to five
days." [Id.). As will be addressed below, that
mere denial is insufficient to establish a disputed material
fact, as Legacy's statement to that effect is supported
completely by the medical records attached to its Motion.
(Rec. doc. 22-9 at p. 4).

Accordingly
and pursuant to Local Rule 56.2 and Rule 56(e)(2) of the
Federal Rules of Civil Procedure, the Court deems the facts
in Legacy's statement to be true.

Thorngate
was employed by Legacy as a tender aboard the DSV SUN RIVER
from February 2, 2017 to February 7, 2017. He performed one
dive on February 3, 2017 and one dive on February 4, 2017.
Prior to both dives, Thorngate underwent a pre-dive
neurological examination and after each dive, he underwent
proper surface decompression protocol. After his last dive on
February 4, 2017, Thorngate remained aboard the DSV SUN
RIVER, performing normal deck duties without incident or
complaint, never exhibiting any symptoms of decompression
sickness, never requesting any medical treatment, and never
complaining of any symptoms consistent with decompression
sickness. He left the vessel on February 7, 2017 without
incident.

On
February 10, 2017, Thorngate slept for 15 hours, during which
time he urinated on himself. Once he woke up, he had
difficulty hearing right shoulder pain, and right-sided
weakness. He went to Teche Regional Medical Center
("Teche Regional") via ambulance, where he tested
positive for amphetamines and opiates and incorrectly
reported that his last dive had been on February 8,
2017.[1] Based on this inaccurate history, he was
transferred to West Jefferson Medical Center for hyperbaric
treatments.

Thorngate
arrived at West Jefferson Medical Center ("WJMC")
on February 10, 2017. He once again incorrectly reported the
date of his last dive, this time stating that it was on
February 6, 2017; he also admitted to taking illegal drugs
the weekend of February 3-5, 2017.

On
February 25, 2017, Thorngate went to the Ohio Valley Medical
Center ("Ohio Valley") complaining of chest pain
that he had been experiencing for four to five
days.[2] He again distorted his recent medical and
work history, reporting correctly that he completed a dive on
February 4, 2017 but reporting incorrectly that he had been
diagnosed with decompression sickness two days later on
February 6, 2017, when he had not made his first visit to
Teche Regional until February 10, 2017. He again tested
positive for opiates and cannabinoids. The emergency room
physicians found that Thorngate was not suffering from
complications of decompression sickness. The doctors at that
facility went so far as to consult a hyperbaric specialist at
the Divers Alert Network in reaching that conclusion.
Thorngate was discharged on February 25, 2017 in a stable
condition.

On
March 12, 2017, Thorngate returned to Ohio Valley complaining
of memory loss and confusion. He tested positive for opiates
and cannabinoids and admitted snorting heroin. He was treated
for altered mental status, encephalopathy, tobacco abuse, and
decompression sickness. The emergency room physician found
the most likely cause of his altered mental status to be his
illicit drug use, finding Thorngate was suffering from a drug
overdose. Thorngate was discharged on March 13, 2017 and
advised to attend drug rehabilitation at a mental-health
facility.

Thorngate
then went to the J.W. Ruby Memorial Hospital on March 15,
2017 complaining of altered mental status. He was
hospitalized until April 14, 2017, requiring almost daily
sedation, feeding tubes, and a brief period of intubation.
His diagnosis at discharge was leukoencephalopathy, drug
abuse, sympathetic storming hypoxic brain damage, and
decompression sickness sequela. He was referred to Peterson
Rehabilitation Hospital.

Thorngate
was admitted to Peterson Rehabilitation Hospital on April 14,
2017 and remained there until June 10, 2017. Based upon the
medical history provided by Thorngate, Dr. Margaret
Graynovsky opined his illness resulted from decompression
sickness and polysubstance abuse, further stating that
"[i]t is difficult to determine prognosis at this time
given the extent of patient's injuries." (Rec. doc.
22-12).

B.
EXPERT OPINIONS

Legacy
retained two experts who executed declarations that are
attached to its Motion. Thorngate offers no expert opinion(s)
in support of his position.

1.
Dr. Ian R. Grover

Dr. Ian
R. Grover is a Professor in Clinical Emergency Medicine at
the University of California San Diego (UCSD).[3] He is also the
Medical Director of Hyperbaric Medicine and Wound Care
Centers at the UCSD Medical Center. He is board certified in
Emergency Medicine and Undersea Hyperbaric Medicine.

Dr.
Grover reviewed Thorngate's February 2, 2017 pre-dive
Neurological Sheet; the February 3, 2017 and February 4, 2017
Dive Sheets; and the February 3, 2017 and February 4, 2017
Daily Offshore Paperwork. He also reviewed Thorngate's
February 15, 2017 statement and his medical records from
Teche Regional, WJMC, and WVU Hospitals and University Health
Associates (W.J. Ruby Memorial Hospital). It is undisputed
that these records indicated that Thorngate performed dives
on February 3, 2017 and February 4, 2017 using a 50/50 Nitrox
mixture during each dive and undergoing conservative surface
decompression following each dive. The Nitrox gas mixture is
an added safely measure to prevent decompression sickness
according to Dr. Grover.

The
records further indicated there were no significant issues
with either of the dives and there was no record of any
problems suggesting decompression sickness. Thorngate then
left the vessel on February 7, 2017.

Dr.
Grover opines "[b]ased on Thorngate's diving
history, personal statement, and emergency department
records, it is almost impossible that his symptoms were due
to decompression sickness." (Rec. doc. 22-13). Rather,
"[t]he most likely cause ...

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